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Should Right To Information Have Been Granted As A Fundamental Right?

Written by: Vienaya Ganesan - ILS Law College
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Since June 2005, when Right to Information Act, was passed, it has been hailed as the hallmark of democracy for the reasons that it purports to make, as regards government information, disclosure the norm and secrecy as the exception. Experts feel that as the Act aims at making the government transparent and more accountable, the effective use of it would, in a long run, curb corruption.

But is this really the truth? With administrators and legislators, who are always in an attempt to narrow the scope and applicability of the Act, in the past one year the Act has seen more controversies than success stories. From parliamentary debate relating to exclusion of file notings to army’s refusal to grant information, it is evident that the ‘right to information’, as a statutory right, has served as a puppet in the hands of our rulers. There is, therefore, a need felt for a superior and more dynamic right.

In this article, I analyze the reasons as to why right to information need to have been included in Part III of the Constitution, to be granted as a fundamental right rather than a statutory right. This would have kept the constant attacks the right suffers at the hands of the politicians at bay.

Ideal Status of Right to Information:

The ideal status the right to information deserves is that of a fundamental right under our Constitution .With the Constitutional guarantee to conform to, the Act could have been used as an instrument constituting the requisite authorities, apart from laying down the quintessential exceptions to granting information, such as national security and parliamentary privilege.

Right To Information Recognized As A Fundamental Right By The Judiciary:

At this juncture, it is imperative to note that the Supreme Court, in State of U.P v. Raj Narain - a 1974 case, recognized the ‘right to know’ as a right inherent in Fundamental Right to freedom of speech and expression guaranteed under article 19(1)(a) of the Constitution. Following this, a plethora of cases the right to information was recognized as a right implicit in the article 19(1)(a) and in article 21 (fundamental right to life and personal liberty).

In Peoples Union for Civil Liberties v. Union of India, the Supreme Court observed that in
Right of information is a facet of the freedom of ‘speech and expression’ as contained in Article 19(1)(a) of the Constitution of India. Right of information, thus, indisputably is a fundamental right.

However, every time the Constitution is amended, the ‘basic structure’ test laid down in Keshavanada Bharti Case has to be satisfied. The test provides that a constitutional amendment should not be in derogation of the basic features of the Constitution like judicial review, democracy or Rule of Law. While including the right to information is as a fundamental right, if at all there is any effect on any of the basic structure it would be in the nature of strengthening the democracy and making it progressive, as envisaged by the makers of our Constitution.

Need For The Fundamental Right Status:

The nature of problems the Act has faced till date ranges from administrative interpretation against the grant of requested information, to ordinary and easy amendment to reduce the scope of the Act. I feel, the above problems would not have arisen had the right been a fundamental right. Let us now analyse the problems case-wise to understand my reasoning.

1. Exclusion of ‘File Notings’ From the Purview of the RTI Act:

In December 2005, the Central Government, for the first time, floated the idea to excluding ‘file notings’ from the scope of the Act by bringing about an amendment to the Act. File notings is an important public document containing details of the decision making process in any public matter - such as who said what and who rejected whose view and on what grounds before a decision was reached in government. It also includes the official correspondence between officers in pursuance of a government scheme or project.

The news created uproar, with activists opining that the accountability of the government would remain only in paper with such exclusion. The matter was then put to rest with the Prime Minister, Mr. Manmohan Singh’s statement against the exclusion.

However, today the matter is back in news. As on date, the Union Cabinet has approved the Amendment Bill to the Act, that when passed will exempt file notings as information that can be demanded as a matter of right.

2. Indian Army’s Recent Refusal to Grant Information:

Again in December 2005, the Indian Army refused to provide information to an applicant on the ground that issues of national security were involved in the requested information. This was in spite of the Army not being one of the eighteen agencies that are exempted under the Act, by virtue of section.24. But when the PM intervened and insisted that Army cannot refuse until a government notification to that effect, the army retracted its stand.

Could It Have Been Avoided?
The above mentioned controversies has brought out into the open, the hard facts. The spineless politicians are going to amend the Act as and when they like it, suiting their needs of the day; the officers are going be complacent and hesitant in giving the information. Had right to information been a Constitutional provision, the fear of PILs would have kept a check on the notoriety of the parliamentarians and authorities.

Thus, it is evident the issues such as those illustrated above could have been avoided had right to information been a fundamental right under the Constitution. Ideally, the legislature should have brought about a constitutional amendment to include the right to information as a fundamental right and the Act should have merely constituted the Information Commissions and appointed the Public Information Officers. With the separate government agency to tackle the problems relating to the fundamental right to information, the evils of bureaucratic pressures and whimsical administrative interpretations could have been kept at bay and democracy celebrated.

Inclusion of right to information as a fundamental right would have also been in conformity with the decisions of the apex court.

Therefore, though India has finally woken up to realize that right to information is a key component in the attainment of economic, social and political rights of an individual as well as the community at large, in my opinion, the step she has taken towards it could have been more effective had she guaranteed a fundamental right to information to its citizenry.

More Articles:
The Right To Information Act
Right To Information - Fundamental Right
Open Government and the Right to Information
Right To Information Act - An Overview

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